Federal JR Handbook

8/8/2019 Federal JR Handbook

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Federal

s52 Constitution Act 1982 states anylaw contrary to provision of the Constitution of Canada is of no force effect During a JR, procedural and evidentiary rules are the same for federal grounds and Charter grounds. Judicial review has occurred often in interpreting s91 which lists enumerated heads of power that are competent to the federal Parliamen

and s92 lists out laws that are competent to provincial Legislatures

Federal vs. CharterIf a law is challenged on federal and Charter grounds, Hogg argues that presence ofs33 override and the support given in s31(1) with the

phrase in respect of all matters within the authority of federal grounds take priority.

Judicial Review

During a judicial review the courts will applytwo steps to determine whether a law falls within a legislative competence of the legislaturethat enacted it. First, identify the matter (pith and substance or characterization) of the challenged law; second, assign the matter to one of

the classes of subjects in the Constitutional Act 1867.

Itis importantto note that:

When a law is challenged for lack of legislative competence there is a legal presumption of constitutionality. When faced with twoplausible characterizations oflaw we should normally choose that which supports the laws constitutional validity. Siemens v Manitoba

[2003]

A law can be valid under more than one provincial power(AG Que v Kellogs Co of Canada 1978)Stage One

The courts identify the most dominant feature (pith and substance) of a challenged law to understand its character. The pith andsubstance doctrine enables one level of government to enact laws with substantial impact on matters outside its jurisdiction. The phrase in

relation to in s91 and s92 supports the doctrine.

a. Effect- a court will always consider the effect of the statute when determining the pith and substance. The courts are always concernedabout the rights and liabilities of those who are affected. Alberta Tax Reference Lord Maugham- the court must take into account any

public general knowledge of which the Court would take judicial notice, and may in proper case require to be informed evidence as to wha

the effect of the legislation will be.

b. Presumption of Constitutionality- When a law is challenged for lack of legislative competence, there is a legal presumption oconstitutionality. When faced with two plausible characterizations of a law, we should choose that which supports constitutional validity

Siemens v Manitoba [2003] The presumption of constitutionality carries 3 legal consequences.

i. in choosing between competing, plausible characterization of a law, the court should normally choose between competing, plausiblecharacterization of a law Re: Firearms Act [2000]

ii. where the validity of a law requires a finding of fact (finding of emergency) the finding of fact need not be proved strictly by thegovernment. It is enough that there be a rational basis for the finding.

iii. if a wide interpretation would extend beyond powers of the enacting legislative body, the court should read down the law so as to confine ithose applications that are within the power of the enacting legislative body.

These 3 functions have the effect of reducing interference by unelected judges with the affairs of elected legislative. Only reading downwith exist in Charter cases

c. Singling Out-Alberta Tax Reference is read as prohibiting provinciallegislatures from singling out banks or other federal undertakingsfor special treatment.Normally, if a provincial law of general application, in relation to a provincial matter may validly affect federa

matters. If a provinciallaw impairs a vital part of a federally regulated enterprise, then the provinciallaw-although valid in the generality o

its applications, will not apply to the federally-incorporated company or federally regulated enterprise.

d. Double aspect doctrine acknowledges that some laws have both a federal/provincial matter. ( ie-Laws prescribing rules of conduct onthe roads have a double aspect and therefore competent to both Parliament and a Legislature.) Hodge v The Queen (1883) held subject

which in one aspect and for one purpose fall within s92 may in another aspect fall within ss91.

e. Purpose-What is the purpose of a statue or the mischief that needs correcting? A statue can have a purpose in its function and sometimesa preamble (intention) In R v Big M Drug Mart (1985)- The Court acknowledged that if the purpose of the statue had not been

religious but rather the secular goal of enforcing a day of rest from labour then the Act would have fallen under provincial rather than

federal competence. Note: legislative history is helpful. Reports of royal commissions, law reform commissions, government policy paper

and parliamentary debates are admissible.

f. efficacy- reviewing judges may pass judgment on the likely efficiency of the statue but leave the wisdom or policy with legislation . ReFirearms Act [2000]- Parliament is the judge of whether a measure is likely to achieve its intended purpose; efficaciousness is not relevan

to the Courts division of powers analysis.


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g. colourability-The colourability doctrine is invoked when a statue bears the formal trappings of a matter within a jurisdiction but in realityis addressed to a matter outside jurisdiction. The doctrine applies the maxim that a legislative body cannot do indirectly what it cannot do

directly. Al berta BankTaxation Reference- although ostensibly designed as a taxation measure, was in reality directed at banking

Colourability cases, there is a very fine line between adjudication on policy and adjudication on validity. The colourability

h. criteria ofchoice- The choice between competing characteristics of the statue, in order to identify the most important one as matter may benothing less than a choice between validity or invalidity.The hardest cases the choice is not compelled by either nature of the statue or the

prior judicial decisions. The choice is inevitably one of policy. The choice must be guided by a concept of federalism. Ask is this the kind

oflaw that should be made by a province or federal government? Simeon- suggests the 3 values of community, efficiency and democracy

as criteria that are helpful on appraisal of the allocation of power in a federal system. Room to argue the weight to each one of the va lues

Where the case is not c

lear, a choice supporting the

legis

lation is preferred.

Fixing the Law/Options

Severance- The leading feature of that plan or scheme will be the pith and substance. It is possible that only part of the statue is invalid and thebalance of it would be valid if it stood alone. Rule- severance is inappropriate when the remaining good part A-G Alta v A-G Can [1947] is soinextricably bound up with the part declared invalid that what remains cannot independently survive. Toronto v York [1938] If two parts can exisindependently then it is plausible to regard them as two different laws. There does appear to be a presumption against severance.Charter- severance is more common in Charter cases. The same test is applied but it is unlikely that the entire statue is struck down on Charterrights.Only one case where entire statue was struck down- R v Big M Drug Mart (1985)

Reading Down- This doctrine when possible a statue is interpreted as being within the power of the enacting legislative body. This means thagenerallanguage of the statue which is literally extending beyond provincial orlegislative power will be construed more narrowly so as to keep iwithin the permissible scope of power.

Attacking Laws

Interjurisdictional Immunity-absent conflict, the validity of enacted laws of each level government will have its normal operation. There are a lineof cases which have applied to render inapplicable a provincial law if it would have an effect on federal matter-federal incorporated companiesfederally regulated undertakings-that is inconsistent with the scope of powers assigned to federal government.

A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body may be attacked in 3 ways

1. the validity of the law or2. the applicability of the law3. the operability ofthe law.

First, it could be argued that the law is invalid because the pith and substance comes with a class of subjects that is outside the jurisdiction of the

enacting body. Alberta Bank taxation Reference (1938)

Second, way of attacking is to acknowledge that the

law is va

lid in most of its app

lications but argue that the

law shou

ld be interpreted so as not to

apply to the matter that is outside the jurisdiction of the enacting body. If this argument succeeds, the law is not held to be invalid, but simply

inapplicable to extra-jurisdictional matter. The technique is reading down the law.

Third, way of attacking a law that applies outside the matter outside the jurisdiction of the enacting body is to argue that the law is inoperative

through the doctrine of paramountcy. The doctrine states that where there is inconsistency between federal and provinciallaws the federallaw should

prevail. Paramountncy render provinciallaw inoperative to the extent of the inconsistency.

Under the second argument -a) Federally-incorporated companies- a valid provincial law may not impair the status or essential powers of a federally incorporated

company. John Deere Plow Co v Wharton [1915]

b) Federally regulated undertakings-undertakings engaged in interprovincial or international transportation or communication , whichcome under federal jurisdiction under the exception to s92(10) are immune from otherwise valid provincial laws which would have

sterilizing the undertakings

c) other federal matters- the doctrine of interjurisdictional immunity also applies outside to fields of transportation and communication.d) rationale of interjurisidictional immunity- the pith and substance doctrine , which allows a provinciallaw to affect a federal matter i

applied more often the interjurisidcitional immunity. Provincial laws may validly extend to federal subjects unless laws bear upon the

those subjects in what makes them specifically of federal jurisdiction. The rule which emerged is- Ordon Estate v Grail [1998] if the

provincial law would affect the basic, minimum and unassailable core of the federal subject, then the interjurisdictional immunity

doctrine stipulated that the provincial law must be restricted in the applications (read down) to exclude the federal subject. Canadian

Western Bank v. Al berta,[2007] 2 S.C.R. 3 If, the provincial law did not affect the core of the federal subject, the pith and substance

doctrine stipulated that the provinciallaw validity applied to the federal subject.

e) provincial entities- there is no case applying the doctrine of interjurisdictional immunity to federal laws to protect provinciallyincorporated companies or provincially regulated undertakings. The doctrine should be reciprocated but the weight of the authority seem

to be given to a federal head of power


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Stage Two

Once the pith and substance (matter) of the challenged law has been identified, the court will then assign it to one of the classes of head.(a)- relevance- once the pith and substance (matter) of the challenged law has been identified the second stage of the judicial review is to assign it to

one of the classes of head.

(b)- exclusiveness- each class of subjects are listened in ss91 and ss92 of the Constitution Act 1867. double aspect - Papp v Papp -the pith and

substance doctrine occasionally has the same effect.

(c)- ancillary doctrine- The Constitution of Canada does not include an ancillary doctrine (like the US or Australia) in the enumerated heads of

power of either Federal Parliament or provincial Legislatures. No such power is needed in Canada. The pith and substance doctrine enables a law

that is classified as in relation to. The rational connection test allows each enumerated head of power to embrace laws that have some impac

on matters entrusted to the otherlevel of government and it provides a flexible standard which gives the enacting body considerable leeway to choose

the legislative techniques it deems appropriate which was applied in R v Zelensky(1978) & Multiple Acces. The impugned provision be essential to

the legislative scheme is stricter then the rational connection test found in Pappv Papp.

For a major encroachment it deserves a stricter test- the impugned provision must be essentia l to the legislative scheme Dickson CJ as serious of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate

constitutional balance maintained.

(d)-Concurrency- 3 provisions that confer concurrent powers. First s92A (2) confers on the provincial Legislatures the power to make laws in

relation to the export of natural resources. and s92A(3)- is explicit the power to make laws in relation to the export of natural resources, trade and

commerce power. Secondly, s94A confers on the federal Parliament the power to make laws in relation to old age pensions and supplementary

benefits and the sections acknowledge the existence on concurrent provincial power. Thirdly, s95- confers power on both the federal Parliament and

the provinciallegislatures concurrent powers over agriculture and immigration. Two doctrines allows substantial area of concurrency in Canada. The

double aspect doctrine and the second judge made doctrine that leads to concurrency is the pith and substance doctrine.

(e) exhaustiveness- the distribution of power between the federa l Parliament and the provincial Legislature is exhaustive. exceptions to thi

doctrine- the framers knew created s92(16)- is generally all matters of a merely local or private nature of the province. The opening words ofs91

give the federal Parliament the residuary power to make laws for the peace, order and good government of Canada... Any matter which does not

come within any of the specific classes of subjects will be provincial if it is merely local or private (s92 (16) and will be federal if it has a nationa

dimension (s91, opening words)

(f) progressive interpretation- this doctrine is one of the means by which the Constitution Act 1867 has been able to adapt to the changes in

Canadian society. It stipulates that the language used to describe the classes of subjects is not frozen in time in 1867 so Undertakings connecting the

provinces could be telephone service.

Some critics argue against it (orignalism) stating that the courts are forever bound by the original understanding This was seen in Same Sex

Marriage reference (2004).The SCC emphasized the living tree quality of the Constitution. A good example can be seen in Re: Employmen

Insurance Act [2005]- where the evolution of role of women in the labour market and the role of fathers in child care was highlighted. The

constitutionallanguage must be placed in the properlinguistic, philosophical and historical context of the provision.

(g) unwritten principles- democracy, constitutionalism, the rule oflaw, the independence of the judiciary, the protection of civil liberties and

federalism, are some of the principles. There are a number of cases where the SCC has found an unwritten princip le in the Constitution. that i

enforceable in precisely the same way as if it were an express term. Manitoba Language Reference(1985)- rule oflaw Re: Remuneration of Judge

(1997)-judicial independence Succession Reference (1998)-democracy, federalism, constitutionalism, and the protection of minorities.

Canadian Western Bankv.Alberta, [2007] 2 S.C.R. 315.5(a)-This case is an example oflaws which have been upheld despite their incidental impact on matters outside the enacting bodys jurisdictionA provinciallaw in relation to insurance and banking.15.8(c)- A majority of the court confirmed that it had indeed changed its mind about the test for interjurisdictiona l immunity. Binnie and LeBel Jwho wrote the majority opinion, announced that the court was comp leting the the reassessment begun in Irwin Toy

15.8(e)-

Criminal LawPower

Constitution Act, 1867, s.91(27)- confers on the federal Parliament power to make criminallaws. Reference re validity of Section 5(a) ofthe Dairy Industry Act 1948The scope is of the power has been defined broadly. A criminal law must have a valid criminallaw purposebacked by a prohibition and a penalty.

Criminal Purposes - a purpose will qualify as criminallaw- does not necessarily involve the prevention of harm to other human beingsProtection of the environment, protection to the cruelty of animals, various forms of economic regulation has been upheld criminallaw.

Food and Drug Standards- Margarine Reference was struck down on the basis that the purpose of legislation was an economic oneprotecting the dairy industry.

Labatt Breweries v A.G. Can (1971) If injurious to health then no doubt would be a criminal public purpose. The prevention ofconsumer deceptionIllicit drugs- non medical use of drugs such as marihuana, cocaine and heroin is proscribed by the NCA. This achas been upheld as a criminallaw.

Schineider v The Queen (1982)-the SCC upheld the BC Heroin Treatment Act- compressive apprehension , assessment and treatment odrugs addicts. was provincials92(16). Not criminal because detention was not for punishment.


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Tobacco- RJR-MacDonald v Canada ( 1995)- power to prohibit the use of tobacco on account of its harmfu l effects on health alsoencompassed the power to take the lesser step of prohibiting the advertising of tobacco products.

Health- is an amorphous topic and can fall under provincial or federal. Depends on the purpose and effect of the legislatures. Environmental protection R v Hydro-Quebec (1997)- the protection of the environment was a public purpose that would support a

federallaw under the criminallaw power and the Environmental Protection Act was covered.

Abortion The CCC used to prohibit abortions. In Morgentaler v The Queen- the validity of the prohibition was challenged on the basithat the safety of modern techniques of abortion made prohibition inappropriate as a protection for the health of the pregnant women. therefore prohibition was not authorized by the criminallaw power.

Hogg 18.7 - Competition Act- Since economic competition is important and its difficult for provinces to regulate anti-competitivepractices it has been agreed it has to be federal to be effective.

US and Australia- criminallaw is a state responsibility18.8 Sunday Observance Law

Federal power- In R v Big M Drug Mart (1985)- the SCC confirmed that the Lords Day act was a valid exercise of the criminallaw powerbecause it pursued the religious purpose of preserving the sanctity of the Christian Sabbith because it was intended to safe guard mora lity.Provincial power- Lieberman v The Queen (1963)-it was held that provincial authority also extends to the imposition oflimits on the busineshours of commercial establishments

Gun Control - In 1995, the federal parliament amended the CC provisions by enacting the Firearms Act which expanded the existingrules by requiring allguns to be registered and allgun owners to be licensed. Alberta appealed this act and the SCC held that this was a

valid exercise of criminal law power. The purpose was to restrict access to inherently dangerous things. History had revealed violencrimes, domestic violence, suicides, and accidents. Thecourt held it was not merely regulatory because if provisions were enforced by thecriminal law means of a prohibition and penalty, because the Act prohibited possession of a gun without a license and a registrationcertificate, imposed penalties for breach of the prohibition.

-----more work ended on 499Re Firearms Act, [2000] 1 S.C.R. 783Hogg 18.9(a)- SCC held act was a valid exercise of the criminallaw power. Purpose of the act was to restrict access to inherently dangerous things

They looked at legislative history-concerns with violent crimes, domestic violence, suicide , and accidents- all which could be facilitated or worsenedby ready access to guns.

All requirements of the act pointed to public safety. Registration provision not concerned with priority between competing property interests inguns, like a provincial property registry. Acts focus on public safety distinguished the act from provincial property registration schemes. The effecon property was incidental to the main purpose to public safety.The Act was not merely regulatory- its provisions were enforced by the criminal law means of a prohibition and penalty.

Trade and Commerce

s91(2) Constitution Act, 1867, s Federal Power over trade over regulation of trade and Commerce s92(13) Constitution Act, 1867, s Provincial power over property and civil rights in the province the interpretive problem for Canada lay in accommodation of the federal power over the regulation of trade and commerce s91(2) with theprovincial power over property and civil rights in the provinces92(13 despite board language in this clause, it has turned out to be much more limited power then its American cousin due to judicia

interpretation. the courts by process of mutual modification have narrowed the two classes of subjects so as to eliminate the overlapping and make each

power exclusive. Parsons Case- it has been accepted that intra-provincial trade and commerce is a matter within provincial power, under property and civi

rights in the province(s92(13) Federal trade and commerce power is confined to 1) interprovincial trade or international trade and 2) commerce and general commerce

in 91(2)

Hogg 20.2(b) Interprovincial Provincial or International Trade and CommerceThere is a strong argument that whenever a market for a product is nationa l (or international) in size as opposed to local, there is a strong argumenthat effective regulation of the market can only be national says Hogg see Caloil v AG Can (1971) Canadian decisions have not gone that far yet likethe US.

Cases supporting Hoggs Statement :

egg market in Re Agricultural Products Marketing Act (1978)- federal marketing was upheld. chicken market in Federation des producteurs v Pelleand (2005) the court upheld a federally imposed quota on each of the provinces

without the regard for the destination of the product.StruckDown:

Hogg disagrees with this decision in Dominion Stores v The Queen (1979) which struck down the Canada Agricultural ProductStandards Act.

Labatt Breweries v AG Can(1979)- another case where the federal trade and commerce power was rejected as a support for federallegislation.

General Trade and Commerce


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- untilGeneral Motors- the general category of trade and commerce had been rather consistently rejected as a support for federal policies oeconomic regulation.

- In Vapor Laskin CJ suggested that circumstances where the general category would be available if the law had been part of a regulatoryscheme administered by a federally appointed agency.

- General Motors-Dickson CJ held that the combines Investigation Act ( now the competition Act) was a valid exercise of the generatrade and commerce power . He applied theVapor Test- consists of3 elements

1. the presence of a regulatory scheme2. the oversight of a regulatory agency and3. a concern with trade as a whole rather than with a particular industry. Dickson added a fourth and fifth for 5 elements4. the legislation should be of a nature the provinces jointly or severally would be constitutionally incapable of enacting5. the failure to include one or more provinces orlocalities in a legislative scheme would jeopardize the successful operation of the scheme

in other parts of the competition.

note: The General Motors Case had all five elements present.

POGGPowers

Peace, Order and Good GovernmentConstitution Act, 1867, s.91 (opening words)Hogg, chapter 17, Peace, Order, and Good Government

The POGG clause in s91 is a residual power in its relationship with the provincial heads of power. The residual nature of the federal power ensures that every possible subject oflegislation belongs to one or other of the federal Parliamen

or the provinciallegislatures. Thesis- the enumerated head of federal powers are merely examples of peace, order and good government of Canada; they are not heads of

power which exist independently of the opening words. This finds support in the opening language of s91.

2 reasons why Hogg rejects the general theory and supports the residual theory of the POGG power:1. The federal list was not just superfluous grammatical prudence; it was compelled by historical necessity and has independen

standing.2. the second reason it does not accord with the practice of the courts in applying the power distributing provisions of the

Constitution.

ways in which legislative power has grown from the POGG power

1. The gap Branch- one office of the POGG power is to fi ll the gaps in the scheme of distribution of power. (ie- incorporation ocompanies s92(11) gives the provinces the power to incorporate companies with provincial objects). Since there is no equivalenenumerated federal power the courts have held it falls under POGG power because it is residual in nature.

2. The national concern branch- The provincial inability test is used to describe national concerns. The most important element onational concern is a need for one nationallaw which cannot be realistically be satisfied by cooperative provincial action because failure o

one province to cooperate would carry with it adverse consequences for the residents of others provinces. Hogg 17.3(b) Le Dain J upheld

federal jurisdiction over marine pollution in R v Crown Zellerbach Canada 1988 - He set out 5 requirements for a matter to qualify as amatter of national concern. It must have:

1) singleness2) distinctiveness3) indivisibility clearly distinguishing it from matters of provincial concern4) the failure of one province to enact effective regulation would have adverse effects of interests exterior to the province5) the scale of the impact on the provincial jurisdictions is reconcilable with the fundamental distribution oflegislative power unde

the Constitution.

Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373Hogg17.217.3(c)(d)-Beetz J had referred several times to a new matter or a new subject -Hogg suggest he meant an issue arising for consideration for the firstime, and not under an enumerated power

17.4(b)17.4(d)-the most recent application of the emergency doctrine is to be found in the Reference Anti-Inflation Act [1976]- in which the federal antinflation Act was upheld as an emergency measure. Their was a period of double digit inflation and high rates of unemployment. Problem was thepreamble of the Act itself did not recite reasons for the legislation or assert the existence of an emergency. Thier was factual material (economicstudy) which was agreed to by professionals and not serious challenged.

note about facts- In a constitutional case where the validity oflegislation depends upon findings of fact concerning social or economic condition othe country its obviously impossible for the Court to make definitive findings.

17.4(e)17.5Important note about temporary charter of law- the anti-inflation reference the legislation was temporary. No permanent measure has ever beenupheld under the emergency power.


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Relationship between national concern and emergency branch-thesis by Lederman (adopted by Beetz J) is that POGG power performs2 separate functions in the Constitution. First, it gives to the federal Parliament permanent jurisdiction over distinct subject matters whichdo not fall within any of the enumerated heads of s 92 and which by nature are of nationa l concern. Secondly, the POGG power gives thefederal Parlaliment temporary jurisdiction over all subject matters needed to deal with an emergency. On this dual function theory- it is nohelpful to regard an emergency as simply being an example of a matter of national concern

R.v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401Hogg17.11.17.3(a)-(d)

(c) the issue of distinctness was the issue that divided the SCC in this case. Majority upheld the federal Ocean Dumping Control Act whichprohibited dumping at sea on the basis of marine pollution was a matter of national concern. LaForest dissented-he felt the power to regulate marinepollution thus intruded too deeply into industrial and municipal activity, resource development and other matters in provincial jurisdiction.

(d) Le Dain For a matter to qualify as a matter of national concern ...it must have a singleness, distinctiveness and indivisibility that clearlydistinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamentadistribution oflegislative power under the Constitution.

17.4(e)17.5

POGGPower CANNOT- be used to regulate a particular industry merely because the industry is nation-wide and important to the nationaeconomy. (Insurance Reference)

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